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right course will be to be provided with the originals. It will also be remembered that the substitution of copies or certificates for original documents is a statutory innovation on the common law; and that where a document is even as much of a public as of a private nature, it contains those objectionable elements of hearsay which are opposed to the fundamental principles of the English Law of Evidence. In short, there is no department of evidence, in which, notwithstanding the above acts, it is more difficult to pronounce distinctly on the degrees of admissibility; and it will still be a safe rule, as it is the sound principle, to produce the originals of even the most undoubtedly public documents, whenever they can be obtained without excessive difficulty or expense. Considerable doubt seems also to exist as to the kind of public documents which are within the acts. Thus, Mr. Taylor (p. 1230) is of opinion that neither, under the 7 & 8 Vict. c. 110, s. 32, nor under the 8 & 9 Vict. c. 16, s. 98, by which the entries of the proceedings of companies are evidence, if purporting to be duly signed by the chairman, and sealed with the company's seal, can certified or examined copies be given in evidence, but the original entries must be produced. This position, however, appears to be very doubtful, and not to be supported by any decision. It seems also to be opposed to the spirit and the express language of the Documentary Evidence Act.
Where a public document or mark requires to be authenticated, it may be proved by any expert and credible witness. Thus the Post-Office mark may be proved by any post-master, or any one who is in the habit of receiving letters by the post.1
BILLS OF LADING.
By the 18 & 19 Vict. c. 111, ss. 1 and 2, every consignee of goods named in a bill of lading, and every
1 Abbey v. Lill, 5 Bing. 299.
indorsee of a bill of lading, becomes the absolute owner, with all the personal rights and liabilities of ownership, subject to the consignor's right of stoppage in transitu, and claims for freight. By sect. 3:
Every bill of lading in the hands of a consignee or indorsee for valuable consideration, representing goods to have been shipped on board a vessel shall be conclusive evidence of such shipment as against the master or other person signing the same, notwithstanding that such goods or some part thereof may not have been so shipped, unless such holder of the bill of lading shall have had actual notice at the time of receiving the same, that the goods had not been in fact laden on board: provided that the master or other person so signing may exonerate himself in respect of such misrepresentation by showing that it was caused without any default on his part, and wholly by the fraud of the shipper, or of the holder, or some person under whom he claims.
are said to be admissible to prove a matter relating to the kingdom at large, such as the death of a sovereign or the time of his accession;2 but not to prove a particular or local custom. Still less are peerages, army and navy lists, directories, calendars, or other non-official publications, admissible.3
1 Bull, N. P. 248.
2 2 Phill. 155. 3 Tayl. 1368.
ON PRIVATE WRITINGS, INSPECTION, NOTICE TO
Ir is the purpose of this chapter to state practically the successive steps by which writings of a private nature are made evidence in courts of justice.
The consideration how far private writings are primary or admissible evidence was treated in the first chapter of the second part of this work. It will be remembered that, generally, personal ex parte statements are never evidence for the party making them; although they are commonly evidence in the nature of an admission against him: (supra, Chapter XV.) Thus, a voluntary affidavit, made before an officer of the superior courts, is not evidence at Nisi Prius or elsewhere, against a person referred to in it; although such an affidavit will, in a similar case of privity, be evidence against the party who makes it. So the affidavit of an absent creditor is inadmissible to oppose an insolvent's application for protection.2
But, when private writings contain a contract, or otherwise embody, or are material to the substance of the issue, they are not only admissible, but also, when producible, indispensable evidence. In such cases a
1 Brickell v. Hulse, 7 A. & E. 457; s. v., Morgan v. Couchman 23 L. J. 36, C. P.
Re Wright, 25 L. T. 318.
party who relies upon them, must either produce them, or account satisfactorily for their non-production. But as such writings are frequently in the hands of an adverse party, who will not voluntarily produce them, the first practical question under this head is to consider how he may be compelled, either to produce them, or to permit an inspection, such as, in the event of non-production after notice to produce, will enable a party to give secondary evidence at trial.
At common law, when a deed or other private document formed the gist of a plea, the defendant was bound to set it out and tender profert; on which the plaintiff claimed oyer, and so became entitled to a sufficient inspection. But it was found that this practice fostered prolixity of pleading; and it was therefore abolished by the Common Law Procedure Act, 1852, s. 55.
The inspection of documents in the hands of an adverse party is now obtained and regulated by the 14 & 15 Vict. c. 99, s. 6; and the 17 & 18 Vict. c. 125, s. 50: (Common Law Procedure Act, 1854.) The first of these acts and sections is as follows:
Whenever any action or other legal proceeding shall henceforth be pending in any of the Superior Courts of Common Law at Westminster or Dublin, or the Court of Common Pleas for the County Palatine of Lancaster, or the Court of Pleas for the County of Durham; such court and each of the judges thereof may respectively, on application made for such purpose, by either of the litigants, compel the opposite party to allow the party making the application to inspect all documents in the custody or under the control of such opposite party, relating to such action or other legal proceeding; and, if necessary, to take examined copies of the same, or to procure the same to be duly stamped; in all cases in which, previous to the passing of this act, a discovery might have been obtained by filing a bill, or by any other proceeding, in a court of equity, at the instance of the party so making application as aforesaid to the said court or judge.
By the 17 & 18 Vict. c. 125, s. 50, it is enacted that:
Upon the application of either party to any cause or other civil proceeding in any of the superior courts, upon an affidavit of such party of his belief that any document, to the production of which he is entitled for the purpose of discovery or otherwise, is in the possession or power
of the opposite party, it shall be lawful for the court or judge to order that the party against whom such application is made, or if such party is a body corporate, that some officer to be named of such body corporate, shall answer on affidavit, stating what documents he or they has or have in his or their possession, relating to the matters in dispute, or what he knows as to the custody they or any of them are in, and whether he or they objects or object (and if so on what grounds) to the production of such as are in his or their possession or power; and upon such affidavit being made, the court or judge may make such further order thereon, as shall be just.
The cumulative effect of these enactments is, thatI. When documents relating to a matter in dispute in an action in any one of the Superior Courts of Common Law are in the custody or under the control of an adverse party, the court or a single judge have a discretionary power (corresponding to that of Courts of Equity in bills of discovery) to compel him to suffer the other party to inspect and take copies of such documents; and where a party declares only his belief on affidavit that an adverse party has such documents, the latter may similarly be compelled to declare on affidavit whether he has them; or, whether he knows anything, and how much, about them; and if he confess to having them, he may similarly be compelled to produce them for inspection.
The practice under both of these recent acts is still very unsettled, but the following principles appear to be recognised :
1. It is clear from the language of the first statute, that an inspection is to be granted by Common Law